In March 2023, Tennessee enacted SB1, a ban on medically necessary gender-affirming medical care when it is provided to transgender adolescents, but not cisgender adolescents. The parents of L.W., a transgender girl, sued the state on her behalf, joined by two other families and a medical doctor, and the United States intervened in support of the plaintiffs. Ignoring the statute’s sex-based character, a divided panel of the Sixth Circuit upheld the ban under rational basis review.

In September 2024, CAC filed a brief in support of the plaintiffs. Our brief demonstrates that the text and history of the Fourteenth and Nineteenth Amendments forbid state-sponsored sex discrimination, and that SB1 classifies based on sex. The Sixth Circuit was wrong to uphold it without subjecting it to heightened judicial scrutiny.

Our brief makes three principal points. First, the text and history of the Fourteenth Amendment guarantee equality under the law. The Fourteenth Amendment prohibits a state from denying to “any person” the “equal protection of the laws.”  As the Amendment’s text and history make clear, it establishes a broad guarantee of equality for all persons, securing the same rights and protection under the law for persons of any race, sex, or class. Its framers consciously chose universal language intended to secure equal rights for all. Under the Amendment’s plain text and original meaning, this sweeping, universal guarantee of equality applies to all, and states may not impose invidious class-based discrimination that denies individuals’ access to medical care based on their sex.

Second, the Nineteenth Amendment buttressed the Fourteenth Amendment’s promise of equality. Section 2 of the Fourteenth Amendment imposed a penalty of reduced congressional representation on states that denied or abridged the right to vote to any of the state’s “male inhabitants,” implicitly sanctioning the disenfranchisement of women. Women’s rights activists celebrated the Fourteenth Amendment’s universal embrace of equality, but rejected the idea that our foundational promises of democracy, freedom, and equality were real if half the population could be excluded from voting based on sex. Demanding fundamental constitutional change, women’s rights activists finally succeeded with the ratification of the Nineteenth Amendment in 1920. The Nineteenth Amendment deepened the Fourteenth Amendment’s promise of equality, unequivocally guaranteeing equal citizenship to all regardless of sex. The Nineteenth Amendment rejected state-sponsored discrimination that was rooted in sex-based stereotypes about women’s roles and bodies that saddled them with second-class citizenship status.

Third, consistent with the text and history of the Fourteenth and Nineteenth Amendments, the Supreme Court has long held that “gender-based classifications . . . require ‘an exceedingly persuasive justification’ in order to survive constitutional scrutiny.” SB 1 classifies based on sex and should have been subjected to heightened scrutiny. On its face, SB1 uses a person’s sex to determine whether certain types of medical care are prohibited or not. It prohibits covered treatments only if they are prescribed “for the purpose” of “[e]nabling the minor to identify with, or live as, a purported identity inconsistent with the minor’s sex.”  Sex, and sex alone, determines when a healthcare provider may dispense puberty blockers and hormones.

SB1 classifies based on sex. The Sixth Circuit was wrong to uphold it without holding the state to the demanding burden required by heightened scrutiny, and the Supreme Court should reverse.